DOJ Drug Opinion Could Encourage Executions

A new Justice Department legal opinion could lead to more executions in the U.S. by easing the availability of drugs used to carry out lethal injections, Politico reports. The opinion from the Office of Legal Counsel says the Food and Drug Administration lacks the authority to regulate drugs or other items used in connection with the death penalty.

The immediate effect of the Trump administration decision is unclear because of a 2012 court injunction barring the FDA from allowing the importation of a key execution drug, sodium thiopental. Shortages of that drug have led many states to scale back or halt executions.

An FDA spokesperson said the agency would “follow the conclusion of the opinion to the extent permissible” by the 7-year-old order, which remains in effect. The opinion from Assistant Attorney General Steven Engel argues that drugs and other items intended for use in executions are not covered by the 1938 Food, Drug and Cosmetic Act. Engel says that conclusion is reinforced by federalism issues that could arise from federal officials trying to enforce such regulations in a way that would frustrate state efforts to carry out executions.

“The Constitution and numerous federal statutes presuppose that capital punishment will remain available and that the federal government will defer to States over methods of execution,” the opinion says.

When the only U.S. manufacturer of sodium thiopental stopped production in 2009, states scrambled to find stocks of the drug in the U.S. and abroad. The FDA moved to halt such imports. In 2015, it blocked a shipment headed for a Texas prison.

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